Pennsylvania Appeals Court Upholds Nutrient Trading

June 15, 2021

The Commonwealth Court of Pennsylvania affirmed the Pennsylvania Environmental Hearing Board’s May 2020 decision authorizing PADEP to allow nutrient credit trading permit provisions. In 2017, Food & Water Watch (FWW), filed a complaint with the Pennsylvania Environmental Hearing Board (Board) attacking the nutrient trading provisions in a Pennsylvania poultry processing plant’s NPDES permit. FWW argued, among other things, that the Clean Water Act (CWA) prohibits water quality trading. The Board issued a decision on May 21, 2020, roundly rejecting FWW’s arguments. The Board found that although the CWA does not expressly mention water quality trading, trading is “one of many tools” available to EPA and states to implement the goals and requirements of the CWA. The Board also cited favorable statements in the Chesapeake Bay TMDL and previous
cases (including a similar challenge filed by FWW in 2012) that recognized the importance of trading to the Bay TMDL. (read more)